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it is up
Mr. O'CONNELL. Well, sir, of course if my
up, The CHAIRMAN. How much longer did you wish to speak?
Mr. O'CONNELL. You see, sir, it is so very hard to follow out a logical line of argument when there are all manner of interruptions and all kinds of questions asked. The argument that I had mapped out I could have delivered in thirty minutes here. The interruptions and questions of all kinds that were thrown at me simply threw me back again. The CHAIRMAN. How soon can you conclude without interruption? Mr. O'CONNELL. I could conclude in ten or fifteen minutes.
The CHAIRMAN. Can you conclude in ten minutes? That will permit us to adjourn at 11 o'clock.
Mr. O'CONNELL. I will conclude in ten minutes or five minutes, or conclude now, if the committee say so.
The CHAIRMAN. We will give you ten minutes.
It was stated, in answer to one of my arguments made here in June, that Mr. Serven would propose an amendment to that section of the copyright act-section g. He did; but he proposed it in such a way that whereas it reads now that it covers compositions published and copyrighted after the act takes effect, he took out the words “published and," so that it should read “copyrighted after this act goes into effect." You can see the object of that. I consider that that was hardly keeping faith with either the members of the committee or myself.
A number of things have been said about the ability of Congress, the right or the power of Congress, in case it passes this bill, to impose a universal royalty. The language of the Constitution is “that Congress has the power," etc., “to pass bills giving the exclusive right to authors in their writings."
I think it will not be questioned by anybody that under our Constitution and laws there is no such thing as a natural right in a writing or in an invention. It was said by some of the gentlemen here earlier in the week that there was a common-law right of copyright prior to the Statute of Anne. That is not so. There was a royal prerogative in reproductions prior to the Statute of Anne, and there could be no reproduction without the grant of the Crown. That was the situation prior to the Statute of Anne. That statute granted rights to authors, and that is the basis of our Constitution and laws to-day. The framers of the Constitution decided that there were no natural rights in authors and inventors. If they had the natural rights there would be no necessity of passing laws giving them the rights. There is no necessity for passing a law giving a man anything that he already has. And in the same way it has been suggested here that as a matter of fact the authors have the right now, but that you are merely securing it to them, as Mr. Bowker said. If they have the right, then why in heaven's name do they want you to pass this bill? Is not that a complete answer to it? If the property right exists, what is the necessity for this bill? If music rolls and the like are infringeinents of their copyright, if they are copies of their writings, what do you want this bill, this section (g), or this new amendment of section (f), for?
Now, gentlemen, in passing this bill or any bill extending copyright to a musical or a mechanical means for the reproduction of sound, you are creating a new property right.
say you have
Now, in my opinion, this is the situation: There is a provision in the Constitution which states that the liberty of contract shall not be abridged. That relates to the citizen's right of contract as regards his recognized natural rights. If you, the Congress of the United States, create a new property right, why have you not the power to annex to that new right any condition that you deem wise? That is my answer to the criticisms of those who say that, while you have power to pass a bill making music rolls and the like copyrightable or infringements, you have not the right to annex the royalty feature. I submit, sirs, that you have.
have. Where you grant the right, you can annex any condition to it you choose. If, as a condition of these men taking that right, you want to impose a universal royalty feature, you can do it. I am not saying in this that you have the right to pass any bill which extends copyright to music rolls and such devices; but I say that if you decide that you have that power and say you will go ahead and pass such a bill you will create this new property right, then I the further power under the Constitution of annexing to it any condition that
you Now, I have a criticism to make on Mr. Burton's bill, and that is that the third paragraph of his bill seems to confer the copyright in reproductive devices upon the first maker of that device.
Mr. CURRIER. Mr. O'Connell, that was not his intention; and he showed me yesterday an amendment which would take care of that.
A GENTLEMAN. He put it before the committee.
Mr. O'CONNELL. I think that the amendment that he proposed would be more full and complete if in the first two or three words from where he says “the arranger” he would say “ each and every arranger." I think there could be no question then as to what he meant.
Now, on the question of the amount of royalty that you ought to set down as reasonable, 2 cents has been suggested.
Mr. CURRIER. That is on perforated rolls!
Mr. O'CONNELL. Yes, sir. I asked Mr. Furniss to-day what was the usual, the reasonable, thę average royalty, and he answered me by telling what was paid John Philip Sousa. I have been credibly informed, on the best authority —
Mr. FURNISS. And 10 per cent to others.
Mr. O'CONNELL. That John Philip Sousa gets a vastly larger royalty on his compositions than any composer in America to-day, and my authority is John Philip Sousa.
Mr. Sousa. Very good authority.
Mr. O'CONNELL. Now, do not forget, gentlemen, that a very old song that you have all heard, called "After the Ball," was hawked around the United States for a long time before anybody would publish it. It was offered to one house for $25, and they would not touch it; it was offered to another house for $10, and they would not touch it. Finally Harris said: “By Jove, I am going to print that myself," and he made $150,000 out of it. It is very hard to determine those things, you know. The vast majority of the publications those music publishers get, I will venture to say that they do not pay on an average of $10 dollars for.
Now, our difficulty here is that while we are dealing with a subject that involves the whole United States, and a vast multitude of composers and others, we have got before us as object lessons the great leaders, the great successes, to show to you the wrongs of this wonderful Music Publishing House Association.
I ask leave, seeing that my time has been curtailed, to submit written amendments, and if in going over the record I want to submit a brief on the subject, I ask leave to do so.
The CHAIRMAN. How much time do you wish to submit your brief?
Mr. O'CONNELL. I do not know, sir, how soon I can have this record of your proceedings. I do not know how soon it will be printed. The last time you were very, very prompt; you had it in a few days.
The CHAIRMAN. Can you submit your amendments and your brief by next Monday?
Mr. O'CONNELL. I will submit my amendments by next Monday. As to whether I will have the record from which to write the brief is another question.
Senator Smoot. Mr. O'Connell, I would like to ask you a question. Have your companies any objection whatever to the extension of the life of a copy right? Just answer that in a few words.
Mr. O'CONNELL. I can not do so in a few words, but I will make it as concise as I can. I listened to the argument of Mr. Clemens here the other day, and he put up a very splendid argument on that question. His statistics-and I assume they were correct-were very good.
Now, if, as a matter of fact, a man does create a wonderful composition which will live for ages, I see no reason why he should not have a long copyright on it; although, of course, contradistinguished to that, we have the rule laid down by the legislature that seventeen years is long enough for the life of a patent. Of course, by analogyand there is a great analogy-I can not see why one should be longer than the other. But I can see very good reasons, as Mr. Clemens explained, why the copyright should be extended.
Senator Smoot. I can see a great deal of difference between a patent and a copyright, and I suppose you can; but I have not time to go into it to-night.
Mr. O'CONNELL. Then, again, the manufacturers say, “Why should it be so in regard to inventions? We have spent our time, we have spent our money in experimenting, and it takes a lot of money to experiment," etc. But the author, on the other hand, goes into his back room and he simply lets genius flow. There is no effort, no expenditure of money, no expenditure of time. [Laughter.]
Senator Smoot. That is about the only thing that does flow, too, in a great many cases. (Laughter.]
Mr. O'CONNELL. Well, he has the satisfaction of being a genius, at any rate, Senator Smoot.
The CHAIRMAN. Mr. O'Connell, we conclude that your familiarity with the subject makes it unnecessary for you to have the record before you, and if you wish to file a brief, will you please do so by next Monday?
Mr. O'CONNELL. That is very pleasing, Senator, but it scarcely meets the practical side of the matter. I thank you for the compliment, of course.
Mr. BoWERS. Mr. Chairman, can I have just one moment, please, sir? I would like to have the record show, if you please, that the corporation of Lyon & Healy, of Chicago, is not a stockholder in the Æolian Company, of New York.
Mr. WEBB. Mr. Chairman, I move that we adjourn until to-morrow at 11 o'clock.
(The following is the letter submitted by Mr. O'Connell in the foregoing statement:)
DEPARTMENT OF THE INTERIOR,
Washington, D. C., June 21, 1905. Hon. HERBERT PUTNAM,
Librarian of Congress, Washington, D. C. DEAR SIR: My attention has recently been called to the suggestion made by Mr. Thorvald Solberg, register of copyrights, in his preface to the publication entitled “Revised Statutes relating to Copyrights,” published in 1904, where he says:
“It would seem, therefore, that the time has arrived for the consideration of the need for a thorough revision of our copyright laws. The subject ought to be dealt with as a whole and not by further merely partial or temporizing amendments. The acts now in force should be replaced by one consistent statute, of simple and direct phraseology, of broad and liberal principles, and framed fully to protect the rights of all literary and artistic producers, and to guard the interests of other classes affected by copyright legislation.
In this connection I wish to call your attention to the fact that the existing provisions of the copyright laws (Rev. Stats., sec. 4952) the laws relating to design patents (Rev. Stats., sec. 4929), as amended May 9, 1902, and the act of June 18, 1874, relating to the registration of prints and labels in the United States Patent Office, have the effect to confuse the boundaries of these subjects and to so mingle the jurisdictions of the Librarian of Congress in the registration of copyrights and of the Commissioner of Patents in the issuance of design patents and registration of prints and labels as to result in confusion. I believe the time is opportune to make a careful and accurate delimitation of the respective fields of copyright and of designs in such way as to clear up the situation. Such clearing up should have the effect to make an exchange of jurisdiction between our respective offices.
To illustrate the necessity for an improvement in the existing laws in this regard, I beg to call your attention to copyrights registered relating to the plastic arts for the purposes of exhibitors at the St. Louis Exposition. A beautiful sheet of cuts illustrating these copyrights is contained in the recent bulletin of the Chamber of Commerce of Paris, No. 19, May 13, 1905.
The suggestion which I wish to make is this: That the subject of intellectual property in the United States ought to be covered by three distinct and separate systems of law, to wit, copyrights, artistic designs, and useful inventions. The first is the proper field of copyright, and this, to my mind, should be restricted to writings, maps, and pictures. These three subjects may be characterized as representative art. The next field, that of artistic designs, relates to creations of an artistic character, ornamental in the effect produced, and embodied in and presented by some physical structure. This class of property is actually presented by the embodiment in which t is used, and it may be called presentative art, rather than representative. I would say, in this connection, that there is to my mind no effective distinction to be drawn for the purposes of a system of law between those objects which may be called creations of pure art and those other objects involving art, but applied to articles of utility. To illustrate, I would say that a beautiful vase may be contemplated as an object of pure art or it may be utilized as a receptacle, at the will of its possessor, and that this employment does not, to any degree, affect the nature of the concept embodied in it and whose creation is thought worthy of the reward of a system of law. The third field, that of useful inventions, is to-day accurately limited by the terms of the Revised Statutes, section 4886, covering this subject-matter, and this field contains all inventions embodying any utility of an operative or functional nature. Since the revision of the design patent law, by the amendment of May 9, 1902, these two statutes limit their respective fields to those characterized as useful inventions, section 4886, and ornamental inventions, section 4929.
Continuing now for a moment the line of thought relating to artistic or ornamental designs, I would say that neither the degree of art involved nor the use to which the object is applied should be considered in the operation of this statute, provided that some intellectual creation is present to bring it within the constitutional term "invention."
For the same reason I am of the opinion that prints and labels, now registered in the United States Patent Office, but under a special provision of the copyright law, should be placed under the control of the office charged with the administration of copyright.
They are differentiated from the general subject only by the limitation that they are
designed to be used for any other articles of manufacture.” This limitation to their contemplated use is not intrinsic to the thing sought to be registered, but is extraneous, and if any property right is to be acquired through merit in these creations, the contemplated use should not be regarded by the statute.
The field of intellectual property comprehends the three subjects of copyright, artistic designs, and useful inventions. These three classes of intellectual property should always receive separate treatment by the laws, on account of the intrinsic differences which their embodiments present; although all arising primarily in concept, the embodiment in which they are utilized makes the field of copyright primarily that of the protection of authors in their writings, the language of the Constitution. Any map or chart is a picture writing, and for the same reasons dramatic and musical compositions belong here. Pictures, in the broadest sense of this term, should be protected by this same system, for they are representative art, a creation portraying things not present. These subject matters so clearly define a special field, and this field is so high in its purposes and aims, that it may well be called the field of instruction, characterized principally by the dissemination of knowledge, and only in small degree and incidentally thereto by commercial propositions. It is the highest and noblest field of intellectual property. At the other extreme lie useful inventions, which are in their origin intellectual creations, as they are embodied concepts of new things, but as employed in human affairs their embodiments are utilitarian, and they universally enter into commercial projects. Between them lies the field of artistic property. I characterize this field as artistic in the essential nature of the creation and as ornamental in the result accomplished by its employment when embodied. The subject of artistic designs occupies an intermediate position between copyright and useful inventions in the commercial considerations involved, covering a field in which, in some instances the artistic thought is paramount, and those others where the commercial attractiveness of an object is increased by the inclusion of a small amount of the artistic product.
This is a field which deserves special encouragement at the present time in the United States. The activities of the American people have been largely exercised in the production of useful inventions; they have been employed in very small degree in the
production of artistic creations. The field for the introduction of this artistic embellishment is practically endless, since every object utilized in our daily life may be the receptacle of such creations. To illustrate the particular field of employment of such creations I would say that stoves, furniture of all descriptions, table service, carpets, wall papers, woven fabrics, as well as articles of jewelry and architectural fittings of all kinds, are a few of the things in which the results of this intellectual activity are embodied.
I beg to call your attention to the fact that there is no practical limitation between the objects of pure art and of applied art, as we reach the consideration of this subject for the application of a system of law. A statuette may be pure art, but if placed upon a table it may be a paper weight. It might be said that if the owner desired he might anchor a boat to it, but the thing is the same. A statue is none the less a statue if used as a caryatid or if it is made to serve the purpose of a lamp holder.
It is for this reason that I conclude that the concrete embodiment of an artistic concept, physically presented, is presentative art and should be protected, if at all, by a system of protection for the artistic design involved and not within the field of representative art, which is the true field of copyright.
In conclusion I will say that to my mind the contemplated revision of the copyright law should be made with a view to resuming jurisdiction over the subjects of prints and labels, now transacted by the Patent Office, and that the registration of designs should be left to the design patent law, which in its present form covers "any new, original, and ornamental design for an article of manufacture," and consequently can afford adequate protection to the subject-matter. I will say that I believe, in connection with your revision of the copyright law, that statutes relating to the protection of designs should be liberalized, in order that a necessary and effective stimulus may be given by a beneficent system of law to the inventive genius in its progress in this direction.
I beg to assure you of my hearty interest in your proposed improvement in the copyright law, and I remain, Yours, very truly,
F. I. ALLEN, Commissioner.